No. 27896 (Amendment): R477-7. Leave

DAR File No.: 27896
Filed: 05/13/2005, 12:58
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to clarify policy and procedure for handling employee leave issues, remove language that is date specific and adjust the Department of Human Resource Management (DHRM) policy governing the return to work of employees from a variety of situations and make nonsubstantive changes.

 

Summary of the rule or change:

In Subsection R477-7-2(6), this language is moved unchanged to the section on annual leave at Subsection R477-7-3(4) where it fits more logically since the rule speaks of the use of annual leave in a specific situation. In Subsection R477-7-3(1), the new wording is a clarification of the policy for the governance of annual leave accrual rates. It is made on the recommendation of human resource professionals in the field who needed more clearly written guidelines. In Subsection R477-7-3(6), the added language simply places in rule what is already clear in the code but is placed here for clarity. In Subsection R477-7-3(8), this amendment clarifies the criteria governing who is eligible for the maximum annual leave accrual rate. The previous statement left out some employees in unique situations who should have been included. In Subsection R477-7-5(1), this amendment simply moves existing language to make it clearer what happens to an employees converted sick leave when the converted sick leave maximum is reached. In Section R477-7-9, this is a complete rewrite of this section designed to accommodate the wide variety of familial relationships in our community. In the new Subsection R477-7-13(1), the new Subsections R477-7-13(1)(a) and (b) are current language moved under this subsection. The new Subsection R477-7-13(1)(c) is new language representing a shift in DHRM policy on the return to work of employees who have been absent from work for a prolonged period. This policy now only requires an agency to offer the employee an immediately available position for which he qualifies and can perform the essential functions without reasonable accommodation. If no position exists, the employee shall be separated from state service. Subsection R477-7-15(1) is deleted because it was only effective up to January 1, 2005. In Subsection R477-7-15(2), this is a technical legal amendment to make the rule consistent with the Fair Labor Standards Act and the Family Medical Leave Act (FMLA). In Subsection R477-7-15(5), sick leave is now required to be used contingent with Family Medical Leave in all instances. This is a shift in DHRM policy; previously, only sick leave that coincided with an FMLA event was used contingent with FMLA. In Subsection R477-7-17(1), this amendment makes DHRM rules concerning long term disability leave consistent with recent changes in how the long term disability (LTD) program is administered by the Public Employees Health Plan. The amendment at Subsection R477-7-17(3) represents a policy shift concerning return to work from LTD leave. This shift is the same as the amendment at Section R477-7-13.

 

State statutory or constitutional authorization for this rule:

Section 67-19-6

 

Anticipated cost or savings to:

the state budget:

The provision defining more precisely who is eligible for the maximum annual leave accrual rate (Subsection R477-7-3(8)) may add a few more employees to the list who will now earn more annual leave. This will add indirect cost for the agency as this additional leave is used and direct cost when the leave is cashed out at termination. It is impossible to predict with precision how much this will be but it is not anticipated to be more than $10,000 to $20,000 for the entire state. All other amendments are clarification of procedures already in place.

 

local governments:

This rule only affects the executive branch of state government and will have no impact on local governments.

 

other persons:

This rule only affects the executive branch of state government and will have no impact on other persons.

 

Compliance costs for affected persons:

Changes mandated by these amendments can be easily handled by the HR system and will have little if any impact on agency resources or procedures.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

Rules published by DHRM have no direct effect on businesses or any entity outside state government. DHRM has authority to write rules only to the extent allowed by the Utah Personnel Management Act, Title 67, Chapter 19. Section 67-19-15 limits the provisions of career service and these rules to employees of the executive branch of state government. The only possible impact may be a very slight, indirect effect if an agency passes costs or saving on to businesses through fees. However, it is anticipated that the minimal costs associated with these changes will be absorbed by agency budgets and will not have any affect on businesses. Jeff Herring, Executive Director

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Resource Management
Administration
Room 2120 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

 

Direct questions regarding this rule to:

May Vang or Conroy Whipple at the above address, by phone at 801-537-3081 or 801-538-3067, by FAX at 801-538-3377 or 801-538-3081, or by Internet E-mail at [e-mail] or [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/01/2005

 

This rule may become effective on:

07/02/2005

 

Authorized by:

Jeff Herring, Executive Director

 

 

RULE TEXT

R477. Human Resource Management, Administration.

R477-7. Leave.

R477-7-2. Holiday Leave.

(1) The following dates are designated legal holidays:

(a) New Years Day -- January 1

(b) Dr. Martin Luther King Jr. Day -- third Monday of January

(c) Washington and Lincoln Day -- third Monday of February

(d) Memorial Day -- last Monday of May

(e) Independence Day -- July 4

(f) Pioneer Day -- July 24

(g) Labor Day -- first Monday of September

(h) Columbus Day -- second Monday of October

(i) Veterans' Day -- November 11

(j) Thanksgiving Day -- fourth Thursday of November

(k) Christmas Day -- December 25

(l) The Governor may also designate any other day a legal holiday.

(2) If a holiday falls on a Sunday, the following Monday shall be observed as a holiday. If a holiday falls on a Saturday, the preceding Friday shall be observed as a holiday.

(3) If an employee is required to work on an observed holiday, the employee shall receive appropriate holiday leave, or shall receive compensation for the excess hours worked.

(4) The following employees are eligible to receive holiday leave:

(a) A full-time employee shall accrue eight hours of paid holiday leave on holidays.

(b) A part-time career service employee and a partner in a shared position who works 40 hours or more per pay period shall receive holiday leave in proportion to the hours paid in the pay period in which the holiday falls.

(c) An employee working flex time, as defined in R477-8-2, shall receive a maximum of 88 hours of holiday leave in each calendar year. If the holiday falls on a regularly scheduled day off, a flex time employee shall receive an equivalent workday off, not to exceed eight hours, or shall receive compensation for the excess hours at the later date.

(5) An employee receives holiday leave in proportion to the number of hours paid during the pay period in which the holiday falls.

(a) A new hire shall be in a paid status on or before the holiday in order to receive holiday leave.

(b) A separating employee shall be in a paid status on or after the holiday in order to receive holiday leave.

(c) An employee in a leave without pay status shall receive holiday leave in proportion to the time paid in the pay period in which the holiday falls.[

(6) The first eight hours of annual leave used by an employee in the calendar leave year shall be the employee's personal preference day.]

 

R477-7-3. Annual Leave.

(1) An employee eligible for annual leave shall accrue leave based on the following years of state service:

(a) [zero through five years]less than 5 years -- four hours per pay period;

(b) [beginning of sixth year through ten years]at least 5 and less than 10 years -- five hours per pay period;

(c) [beginning of eleventh year through twenty years]at least 10 and less than 20 years --six hours per pay period;

(d) [beginning of the twenty-first year or more]20 years or more -- seven hours per pay period.

(2) The accrual rate for an employee rehired to a position which receives leave benefits shall be based on all state employment in which the employee was eligible to accrue leave.

(3) An eligible employee may begin to use annual leave after completing the equivalent of two full pay periods of employment.

(4) The first eight hours of annual leave used by an employee in the calendar leave year shall be the employee's personal preference day.

([4]5) Agency management shall allow every employee the option to use annual leave each year for at least the amount accrued in the year.

([5]6) An employee may elect to convert unused annual leave to a 401(k) or 457 deferred compensation program sponsored by the Utah State Retirement Board when funded by the legislature.

(a) Only hours accrued in excess of 320 hours after the end of the last pay period of the leave year are eligible for conversion.

(b) The election to convert may only be made after the end of the last pay period of the leave year as determined by the Division of Finance.

(c) The conversion shall be in whole hour increments.

(d) An employee may convert up to 20 hours or $250 in value, whichever is less.

(e) The value of the converted leave may not cause the contribution to the 401(k) or 457 account to exceed the maximum authorized by the Internal Revenue Code.

([6]7) After the conversion in R477-7-3(5), unused accrued annual leave time in excess of 320 hours shall be forfeited at the beginning of the first full pay period of each calendar year.

([7]8) The maximum annual leave accrual rate shall be granted to a certain employee under the following conditions:

(a) an employee on the Executive Pay Plan, as described in 67-22-2, an employee in schedule AB, and agency deputy directors and division directors appointed to career service exempt positions.

(b) an employee who is schedule A, FLSA exempt and who has a direct reporting relationship to an elected official, executive director, [or ]deputy director, commissioner or board[ who is schedule A and FLSA exempt].

(c) The maximum accrual rate shall be effective from the day the employee is appointed through the duration of the appointment. Employees in these positions on July 1, 2003, shall have the leave accrual rate adjusted prospectively.

(d) The employee may not be eligible for any transfer of leave from other jurisdictions.

(e) Other provisions of leave shall apply as defined in R477-7-1.

 

R477-7-5. Converted Sick Leave.

As an incentive to reduce sick leave abuse, an employee may convert sick leave hours to converted sick leave after the end of the last pay period of the calendar year in which the employee is eligible.

(1) To be eligible, an employee's sick leave account must have accrued a minimum total of 144 hours at the beginning of the first pay period of the calendar year.

(a) At the end of the last pay period of a calendar year in which an employee is eligible, all unused hours accrued that year in excess of 64 shall be converted to converted sick leave. In the event the employee has the maximum accrued in converted sick, these hours will be added to the annual leave account balance. An employee who does not wish to have the sick leave converted shall notify agency management no later than the end of February. The converted sick leave hours will then be returned to the sick leave account.

(b) Upon separation, an eligible employee may convert any unused hours accrued in the current calendar leave year in excess of 64 to converted sick.[ In the event the employee has the maximum accrued in converted sick these hours will be added to the annual leave account balance.]

(c) The maximum hours of converted sick leave an employee may accrue is 320.

(2) Converted sick leave may be used as annual leave, regular sick leave, or as paid health and life insurance at the time of retirement for employees under age 65. If an employee is 65 years of age or older at the time of retirement, converted sick leave may be used to purchase a Medicare supplement.

(a) Payment for health and life insurance is the responsibility of the employing agency.

(b) The purchase rate shall be eight hours of converted sick leave for the state paid portion of the premium for one month's coverage for health and life insurance.

(c) The retiree shall pay the same percentage of the premium as a current employee on the same plan.

 

R477-7-9. Funeral Leave.

An employee may receive a maximum of 24 hours funeral leave per occurrence with pay, at management's discretion, to attend the funeral of a member of the employee's immediate family. Funeral leave may not be charged against accrued sick or annual leave.

(1) The ["immediate family"]immediate family means relatives of the employee or spouse including in-laws, step-relatives, or equivalent relationship of the same degree as follows:[ wife, husband, children, daughter-in-law, son-in-law, parents, grandchildren, mother-in-law, father-in-law, brother-in-law, sister-in-law, grandparents, step-grandparents, spouse's grandparents, spouse's step-grandparents, step-children, step-parents, brothers and sisters, and step-brothers and step-sisters of the employee]

(a) spouse;

(b) parents;

(c) siblings;

(d) children;

(e) all levels of grandparents; or

(f) all levels of grandchildren.

 

R477-7-13. Leave of Absence Without Pay.

(1) An employee shall apply in writing to agency management for approval of a leave of absence without pay. Approval may be granted for continuous leave for up to 12 months from the last day worked.[ If unable to return to work within the time period granted, the employee shall be separated from state employment.]

(a) The employee shall be entitled to previously accrued annual and sick leave.

(b) If unable to return to work within the time period granted, the employee shall be separated from state employment.

(c) If an employee returns to work on or before the expiration of leave without pay and is unable to perform the essential functions of the position because of a permanent disability that qualifies as a disability under the ADA, the agency shall offer the employee a reassignment to one or more immediately available vacant positions, for which the employee qualifies, and whose essential functions the employee is able to perform without a reasonable accommodation. If no position is immediately available the employee shall be separated from state employment.

([1]2) Nonmedical Reasons

(a) Leave without pay may be granted only when there is an expectation that the employee will return to work. This section does not apply for military leave.

(b) Agency management may approve leave without pay for an employee even though annual or sick leave balances exist. An employee may take up to ten consecutive working days of leave without pay without affecting the leave accrual rate.

(c) An employee who receives no compensation for a complete pay period shall be responsible for payment of the full premium of state provided benefits.

(d) An employee who returns to work on or before the expiration of leave without pay shall be placed in a position with comparable pay and seniority to the previously held position.[ The employee shall also be entitled to previously accrued annual and sick leave.]

([2]3) Medical Reasons

(a) An employee who is ineligible for FMLA, Workers Compensation, or Long Term Disability may be granted leave without pay for medical reasons.

(b) Medical leave without pay may be granted for no more than 12 months. Medical leave may be approved if a registered health practitioner certifies that an employee is temporarily disabled.

(c) An employee who is granted this leave shall provide a monthly status update to the employee's supervisor.

 

R477-7-15. Family and Medical Leave.

[(1) This section, R477-7-15(1), is effective until January 1, 2005. This rule conforms to the federal Family and Medical Leave Act, 29 USC 2601. Employees eligible under this rule shall continue to receive medical insurance benefits provided the employee was entitled to medical insurance benefits prior to the commencement of FMLA leave.

(a) Agency management shall authorize up to 12 weeks of leave each calendar year to employees for any of the following reasons:

(i) birth of a child;

(ii) adoption of a child;

(iii) placement of a foster child;

(iv) a serious health condition of the employee; or

(v) care of a spouse, dependent child, or parent with a serious medical condition.

This paragraph and section, R477-7-15(1), are effective on January 1, 2005. This rule parallels the federal Family and Medical Leave Act, 29 USC 2601. Family and medical leave (FMLA) may be authorized when appropriate. This provision does not authorize FMLA leave in excess of that provided for by federal statutes and regulations.]

(1) An employee is entitled to 12 weeks of family and medical leave in a 12 month period.

(a) The amount of FMLA leave available to an employee shall be 12 weeks minus any FMLA leave used in the immediately preceding 12 month period.

(b) Agency management shall approve FMLA leave for any of the following reasons:

(i) birth of a child;

(ii) adoption of a child;

(iii) placement of a foster child;

(iv) a serious health condition of the employee; or

(v) care of a spouse, dependent child, or parent with a serious medical condition.

(c) An employee on FMLA leave shall continue to receive the same health insurance benefits the employee was receiving prior to the commencement of FMLA leave.

(2) To be eligible for family medical leave, the employee must:

(a) be employed by the state for at least 12 months;

(b) be employed by the state for a minimum of 1250 [compensable work ]hours worked as determined under FMLA during the 12 month period immediately preceding the commencement of leave; and

(c) apply in writing to the agency when the reason for requesting family medical leave changes in the course of a year.

(3) An employee, or an appropriate spokesperson, shall submit a leave request:

(a) thirty days in advance for foreseeable needs; or

(b) as soon as possible in emergencies.

(4) Agency Responsibility

(a) Agency management shall be responsible for:

(i) documenting employee leave requests which qualify as FMLA leave; and

(ii) designating any qualifying leave taken by an employee as FMLA leave. All leave requests which qualify as FMLA leave shall be designated as such and shall be subject to all provisions of this rule; and

(iii) notifying an employee orally or in writing of the designation within two business days, or as soon as a determination can be made that the leave request qualifies as FMLA leave if the agency does not initially have sufficient information to make a determination.

(A) An oral notice must be confirmed in writing no later than the following payday.

(B) If the payday is less than one week after the oral notice, then written notice must be issued by the subsequent payday.

(b) Written notification to an employee shall include the following information:

(i) that the leave will be counted against the employee's annual FMLA entitlement;

(ii) any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so;

(iii) a statement explaining which types of leave the employee will be required to exhaust before going into a LWOP status;

(iv) the requirement for the employee to make premium payments to maintain health benefits, the arrangements for making such payments, and the possible consequences of failure to make such payments on a timely basis;

(v) the employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave;

(vi) any requirement for the employee to present a fitness for duty certificate to be restored to employment; and

(vii) the employee's rights to restoration to the same or an equivalent job upon return from leave.

(c) Agencies may designate FMLA leave after the fact only:

(i) if the reason for leave was previously unknown, provided the reason for leave is made known within two business days after the employee's return to work; or

(ii) the agency has preliminarily designated the leave as FMLA leave and is awaiting medical certification.

(d) Agencies shall allow the employee at least 15 calendar days to provide medical certification if FMLA leave is not foreseeable.

(e) Agencies shall inform Group Insurance that an employee is approved for FMLA leave.

(5) An employee shall be required to [use]exhaust accrued annual leave, sick leave, [and ]converted sick leave and excess hours prior [to the use of]to going into leave without pay status for the family and medical leave period. [An employee shall be required to use accrued sick leave only in situations considered eligible under R477-7-4(3). ]An employee who takes family and medical leave in a leave without pay status must comply with R477-7-13.

(a) An employee may choose to use compensatory time for an FMLA reason. Any period of leave paid from the employee's accrued compensatory time account may not be counted against the employee's FMLA leave entitlement.

(6) An employee shall be eligible to return to work under R477-7-13.

(a) If an employee has gone into leave without pay status and fails to return to work after FMLA leave has ended, an agency may recover, with certain exceptions, the health insurance premiums paid by the agency on the employee's behalf. An employee is considered to have returned to work if the employee returns for at least 30 calendar days.

(b) Exceptions to this provision include:

(i) an FLSA exempt and schedule AB, AD and AR employee who has been denied restoration upon expiration of their leave time;

(ii) an employee whose circumstances change unexpectedly beyond the employee's control during the leave period preventing the return to work at the end of 12 weeks.

(7) Leave taken for purposes of childbirth, adoption, placement for adoption or foster care shall not be taken intermittently or on a reduced leave schedule unless the employee and employer mutually agree.

(8) Leave required for certified medical reasons may be taken intermittently.

(9) Leave taken for a serious health condition covered under workers' compensation may be counted towards an employee's FMLA entitlement. Use of accrued paid leave shall not be required for FMLA leave at the same time the employee is collecting a workers' compensation benefit.

(10) Medical records created for purposes of FMLA and the Americans with Disabilities Act must be maintained in accordance with confidentiality requirements of R477-2-5(6).

 

R477-7-17. Long Term Disability Leave.

(1) An employee who is determined eligible for the Long Term Disability Program (LTD) shall be granted up to one year of medical leave, if warranted by a medical condition.

(a) The medical leave begins on the last day the employee worked. LTD requires a three month waiting period before benefit payments begin. During this period, an employee may use available sick and converted sick leave. When those balances are exhausted, an employee may use other leave balances available.

(b) [An employee determined eligible for Long Term Disability benefits, after the three month waiting period, shall be eligible for health insurance benefits beginning two months after the last day worked. The employee is responsible for the employee share of the premium during the two months following the last day worked. The health insurance benefit shall continue without premium payment for up to 22 months or until eligibility for Medicare or Medicaid, whichever occurs first. After 22 months, the health insurance may be continued with premiums being paid in accordance with LTD policy and practice.]An employee determined eligible for Long Term Disability benefits shall be eligible for health insurance benefits the day after the last day worked. The employee is responsible for 10% of the health insurance premium during the first year of disability, 20% during the second year of disability, and 30% thereafter until the employee is no longer covered by the long term disability program.

Upon approval of the LTD claim:

(i) Biweekly salary payments that the employee may be receiving shall cease. If the employee received any salary payments after the three month waiting period, the LTD benefit shall be offset by the amount received.

(ii) The employee shall be paid for remaining balances of annual leave, compensatory hours and excess hours in a lump sum payment. This payment shall be made at the time LTD is approved unless the employee requests in writing to receive it upon separation from state employment. No reduction of the LTD payment shall be made to offset this payment. If the employee returns to work prior to one year after the last day worked, the employee has the option of buying back annual leave at the current hourly rate.

(iii) An employee with a converted sick leave balance at the time of LTD eligibility shall have the option to receive a lump sum payout of all or part of the balance or to keep the balance intact to pay for health and life insurance upon retirement. The payout shall be at the rate at the time of LTD eligibility.

(iv) An employee who retires from state government directly from LTD may be eligible for up to five years health and life insurance as provided in Subsection 67-19-14(2)(b)(ii).

(v) Unused sick leave balance shall remain intact until the employee retires. At retirement, the employee shall be eligible for the cash payout and the purchase of health and life insurance as provided in Subsection 67-19-14(2)(c)(i).

(2) An employee shall continue to accrue service credit for retirement purposes while receiving long term disability benefits.

(3) Conditions for return from leave without pay shall include:

(a) If an employee is able to return to work within one year of the last day worked, the agency shall place the employee in the previously held position or similar position in a comparable salary range provided the employee is able to perform the essential functions of the job with or without a reasonable accommodation.

(b) If an employee is unable to perform the essential functions of the position because of a permanent disability that qualifies as a disability under the ADA, the agency shall [place the employee in the best available, vacant position for which the employee qualifies and is able to perform the essential functions of the position with or without reasonable accommodation]offer the employee a reassignment to one or more immediately available vacant positions, for which the employee qualifies, and whose essential functions the employee is able to perform without a reasonable accommodation.

(c) If an employee is unable to return to work within one year after the last day worked, the employee shall be separated from state employment.

(4) An employee who files a fraudulent long term disability claim shall be disciplined according to the provisions of R477-11.

 

KEY: holidays, leave benefits, vacations

[July 2, 2004]July 2, 2005

49-9-203

63-13-2

67-19-6

67-19-12.9

67-19-14.5